"Not A Typical Election Contest" Filed Over Postponed Puna Primary

by Robert Thomas, InverseCondemnation.com, August 22, 2014

Yesterday at 4:30 p.m. was the statutory deadline for instituting an "election contest" in the Hawaii Supreme Court to challenge last Friday's postponed Puna precincts primary (say that quickly five times).

As those of you who have been following along know, the state's Chief Election Officer determined that voting would remain open in two Big Island precincts due to the impacts of Tropical Storm Iselle on primary day. He could have ordered a delay of up to 21 days and the use of mail-in ballots, but after some waffling, determined that the two-precinct election would be held one week later, with in-person voting. All of this while the reports of the impact of the storm just seemed to get worse each day as the residents of Puna dug themselves out, and the true scope of the damage made its way to the media.

National eyes were watching, because the Democratic Party primary for U.S. Senate was close, and the delayed Puna votes could have changed the results. One Senate candidate filed a pre-election challenge, but the circuit court let the election go forward, with the judge noting that he believed there were some questions, but ruling that he had no power to overrule the Chief Election Officer's decision. When the delayed votes were added to the earlier results, the parties had their nominees, and the Senate runner up decided to throw in the towel and stated that she would not file a post-election "election contest."

Late in the day yesterday, however -- about 45 minutes before the six-day statute of repose window closed -- at least one complaint was filed. The plaintiffs are six Big Island voters who are residents of precincts which were not subject to the Chief Election Officer's postponement decision who assert that the damage prevented them from voting, and, interestingly, the American Civil Liberties Union of Hawaii, which not only represents the plaintiffs, but is also a plaintiff itself.

We've had a chance to review the filing, and this report from KHON2 sums up our thoughts:

Two other precincts, which the state closed on August 9th, were allowed to vote nearly a week later. The plaintiffs say, they’d like that same opportunity.

They are suing the Governor, Attorney General, State Chief Election Officer, and Hawaii County Elections Clerk, claiming they failed to take steps necessary to allow the individual Plaintiffs the opportunity to exercise their right to vote.

Election law attorney Robert Thomas believes the lawsuit includes questions and concerns many people have.

“But I’m just not sure that the Hawaii Supreme Court is the place that these questions can be answered,” Thomas said.

Read the entire report here ("ACLU sues state over primary election"), or watch the video above.

The complaint acknowledges that "the instant case is not a typical election contest as contemplated by HRS §§ 11-172 or 11-173.5, in which a candidate, political party, or a group of thirty voters seeks to have the [Hawaii Supreme] Court declare a different result of the election." Complaint at 3 (emphasis original).

On that point, we'd have to agree. Your "typical" primary election contest invoking the original jurisdiction of the Hawaii Supreme Court is governed by the two statutes noted, § 11-172 and § 11-173.5. The first gives the Supreme Court original (non-appellate) jurisdiction, and defines "election contest" as a lawsuit in which "any candidate, or qualified political party directly interested, or any thirty voters of any election district" claims "provable fraud, overages, or underages, that could cause a difference in the election results" (although the claims are not limited to those examples). Section 11-173.5 deals specifically with the deadlines and the relief available in a primary (or special) election contest. Interestingly, the court has limited jurisdiction on what it can order if it finds good cause:

The judgment shall decide what candidate was nominated or elected, as the case may be, in the manner presented by the petition, and a certified copy of the judgment shall forthwith be served on the chief election officer or the county clerk, as the case may be, who shall place the name of the candidate declared to be nominated on the ballot for the forthcoming general, special general, or runoff election.

That's it. It apparently does not have the express authority to order a new election, or, as the complaint requests, an order allowing the plaintiffs and others to vote in the now-pau election. The court also does not have original jurisdiction to declare that the statute in which the legislature delegated discretion to the Chief Election Officer to delay elections unconstitutional because it exceeds the requirements of article II, section 4 of the Hawaii Constitution, which requires the legislature to "prescribe the method of voting at all elections." 

Thus, this atypical election challenge complaint leaves us with more questions than answers:

• What about the candidate, political party, or thirty-voter plaintiff requirements?
• How does the ACLU itself have standing?
• Why does the complaint name the Governor and the Attorney General as defendants, and what do they have to do with the delayed election? 
• What about subject matter jurisdiction? The complaint invokes the jurisdiction of the Supreme Court under a variety of authorities (including the court's "catch-all" [our words, not theirs] jurisdiction), but not the court's jurisdiction over actual "election contests." See Complaint at 8, ¶ 10. 
• If the complaint gets tossed from the Hawaii Supreme Court on jurisdictional grounds, can the plaintiffs still obtain the relief they seek in circuit court?
• If a court orders the voting to continue, could this make a difference in the outcome, not only in the Senate race, but on other contests which were even closer? See, e.g, Complaint at 19 ("According to Plaintiffs’ calculations, if 149 or more voters were to cast ballots for any one of the three non-leading County Council candidates, there would be a run-off election in November between the two top candidates. This is a distinct possibility given that sheer number of people who were unable to cast votes in the August primary.").

We'll know more after the defendants respond.

PDF: Complaint, Lathers v. Abercrombie, No. ____ (Haw. S. Ct. Aug. 21, 2014)